House of Lords - Explanatory Note
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Schedule 8 - Transfer of community orders to Scotland or Northern Ireland

682.     This Schedule is based on Schedule 4 of the Powers of Criminal Courts (Sentencing) Act 2000, and provides for community orders made in England and Wales to transfer to Scotland or Northern Ireland. An order can transfer either at the point of sentence or once the sentence has begun.

683.     Paragraphs 1 and 2 concern arrangements to transfer community orders to Scotland, while Paragraphs 3 to 5 do the same for Northern Ireland. Paragraphs 6 through 16 are general provisions that apply to both types of transfers.

684.     If the court is considering making or amending a community order so that the offender can move to Scotland or Northern Ireland, it must check whether provision can be made for the offender to comply with the requirements and that arrangements for his supervision can be made in the locality in Scotland or Northern Ireland where he proposes to live. If the court is amending an existing order to allow it to transfer, if any requirement cannot be complied with in the locality of Scotland or Northern Ireland (for whatever reason) it must be removed from the order. Otherwise, the court can decline to amend the order and require it to be carried out in England and Wales.

685.     When an order transfers, it will be treated as a Scottish or Northern Irish community order, so the court must specify which corresponding order the community order will transfer as. For example, if the community order consists of unpaid work, it will transfer as a Scottish or Northern Irish community service order.

686.     Paragraph 6 defines various terms used in the Schedule. Paragraph 7 provides for the sentencing court to send copies of the order and other information to the court that will have jurisdiction in Scotland or Northern Ireland. Paragraph 8 describes how the 'responsible officer' provisions are to be interpreted in the case of a transferred community order.

687.     Paragraph 9 provides for the order to be treated as a corresponding order in Scotland and Northern Ireland. Paragraph 10 requires the court to explain how the order will function once transferred. Paragraph 11 describes what powers the Scottish or Northern Irish court will have in relation to the order.

688.     Under paragraph 12 the Scottish and Northern Irish courts may summons the offender to the court which made the order if he fails to comply with the requirements of the order (they can also deal with the breach themselves if they wish, as currently)). Paragraph 13 provides that if the offender fails to appear, the court can issue a warrant, and can exercise any power in respect of the community order as if the court were in England and Wales. Paragraph 14 prevents the court from amending a community order unless arrangements can be made for the offender to comply with the amended requirements.

689.     Paragraph 15 provides that if a Scottish or Northern Irish court amends a community order in response to breach, this Schedule continues to apply to that order. Paragraph 16 concerns sending documents to the court which made the order, if the offender is summonsed to appear before that court due to a failure to comply with the requirements.

Schedule 9: Revocation or amendment of custody plus orders and amendment of intermittent custody orders

690.     This Schedule makes provision for revoking custody plus orders, and amending custody plus and intermittent custody orders. In both cases the prison sentence itself will not be revoked or amended. Paragraph 3 provides for the court to revoke custody plus orders and remove requirements as to licence conditions from intermittent custody orders on application of the offender or responsible officer and where it deems it to be in the interests of justice to do so. Paragraph 4 provides for the court to amend the order to refer to another petty sessions area if the offender proposes to change, or has changed, his residence. If a requirement is not available in the new area the court may cancel that requirement or substitute it for another which can be complied with in the new area. Specifically, a programme requirement cannot be imposed on amendment unless it is available in the new area.

691.     Under paragraph 5, the court may, on application of the offender or the responsible officer, amend a custody plus or intermittent custody order by cancelling a requirement or replacing it with another of the same kind (that is, if it is in the same paragraph of clause 175(1)). New requirements are subject to the same restrictions as they would have been if the order was being made. Paragraph 6 provides that the court may, on application of the offender or the responsible officer, amend the licence periods of an intermittent custody order, if suitable prison accommodation is available. The court may also amend the order such that the intermittence of the licence periods is removed. This provision could be used if the offender, for example, loses his job, which had provided the reason for intermittence. He might want to serve his sentence in the normal manner in order to get the custodial days over with as soon as possible. Another example might be if the offender turned out to be unsuitable for intermittent custody. The responsible officer could apply to have the intermittence removed from the sentence, so that the custodial periods are served consecutively, followed by the licence period.

692.     Paragraphs 7 to 9 contain supplementary provisions. No application under this Schedule can be made if an appeal against the order is pending. Where a court is amending an order, and the application is not by the offender, the court must summon the offender to appear before the court and may issue a warrant if he does not appear. This does not apply if the court is cancelling a requirement. Paragraph 9 sets out procedural arrangements for sending copies of the order to relevant parties.

Schedule 10: Breach, revocation and amendment of suspended sentence order, and effect of further conviction

693.     Part 1 of this Schedule and paragraphs 3 and 4, on statutory warnings, make similar provision to that dealing with community orders in Schedule 7. Paragraph 5 provides that a magistrates' court can issue a summons for an offender to appear before a court (or a warrant for his arrest) if the offender has failed to comply with any community requirements of the order in cases where the suspended sentence order was made by a magistrates' court. The summons will specify the court reviewing the order if the order contains provision for review. If the offender does not appear in response to a summons the court can issue a warrant for his arrest. Paragraph 6 provides for the Crown Court to issue a summons or warrant for the offender to appear before it where the order was made by the Crown Court. If the offender does not appear in response to a summons, a warrant for his arrest can be issued.

694.     Paragraph 7 sets out the magistrates' court's powers where an offender breaches a suspended sentence by failing to comply with a community requirement or by committing a further offence anywhere in the United Kingdom. The presumption is that the suspended sentence will be activated, unless the court finds that it would be unjust to do so. If it activates the suspended sentence the court can set a shorter term or custodial period for the offender to serve if it wishes. If the court finds that it would be unjust to activate the suspended sentence it can keep the sentence suspended but amend the order to make the community requirements more onerous or to extend either the supervision or operational periods. The court must state the reasons for choosing this option. It must also take into account the extent to which the offender complied with the requirements of the order and the facts of the subsequent offence.

695.     Under paragraph 8 when the suspended sentence is activated, the court must make a custody plus order. That is, it has to set the licence conditions that will apply on the offender's release from custody at the end of custodial period of his sentence. The court may decide whether the new sentence is to take effect immediately or after any other sentence that the offender is serving (subject to the rules affecting consecutive sentences). Under sub-paragraph (3), if the proceedings occur in the Crown Court the determination of breach is to be made by the court and not a jury. Sub-paragraph (4) provides that an activated suspended sentence counts as having been imposed by the court which originally imposed the suspended sentence.

696.     Under paragraph 9, if an offender has refused to comply with a mental health, drug or alcohol treatment requirement, and the refusal is believed by the court to be reasonable under the circumstances, it is not to count as breach. Paragraph 10 sets out which court deals with the suspended sentence if the offender is convicted of a further offence. Where the original sentence was passed by the Crown Court and the subsequent offence by a magistrates' court, the latter can remand the offender in custody or on bail to the Crown Court or give written notice to the Crown Court of the subsequent conviction. A suspended sentence on appeal is to count as having been passed by the court at which he was originally sentenced.

697.     Under paragraph 11, if it becomes apparent that the court has not dealt with the suspended sentence in cases where the offender has committed a new offence, a court with jurisdiction may issue a summons or warrant to the offender to appear before a court. A court with jurisdiction refers to the Crown Court if the suspended sentence was passed by the Crown Court, or a justice acting for the area if the suspended sentence was passed by the magistrates' court. A magistrates' court may not issue a summons except on information and may not issue a warrant except on information in writing and on oath. If the subsequent offence is committed in Scotland or Northern Ireland, and the original suspended sentence was passed in England or Wales, the Scottish or Northern Irish court must give written notice of the conviction to the court that passed the suspended sentence. Summonses and warrants must direct the offender to appear before the court that imposed the suspended sentence. A suspended sentence on appeal is to count as having been passed by the court at which he was originally sentenced.

698.     Part 3 deals with amending suspended sentence orders. Paragraph 12 provides that the appropriate court can cancel the community requirements of a suspended sentence order on application of the offender or responsible officer. This may occur if the offender becomes very ill and cannot undertake the requirements but the court feels it would still be of benefit to have the suspended sentence in place. No application can be made if an appeal against the order is pending. The appropriate court is explained in sub-paragraph (4). Paragraph 13 provides that the appropriate court can amend the suspended sentence order by substituting a new petty sessions area if the offender proposes to or has changed residence. The court may, and on the application of the responsible officer must, cancel or change any requirements of the order that are not available in the area to which the offender wishes to move. In particular, a programme requirement cannot be amended if it is not available in the new area. The appropriate court is the same as in paragraph 12.

699.     Under paragraph 14 an offender or his responsible officer can apply to have the requirements of an order amended. The appropriate court can cancel a requirement or replace it with another requirement of the same kind, for example to alter the hours of a curfew or substitute one activity for another. The court cannot amend a mental health, drug or alcohol treatment requirement unless the offender consents. If the offender fails to consent, the court can revoke the order and re-sentence the offender. If it re-sentences him the court must take into account the extent to which the offender complied with the requirements of the order. The appropriate court has the same meaning as in paragraph 12. Paragraph 15 provides that, where a community order includes a drug rehabilitation, alcohol treatment or mental health treatment requirement and the medical practitioner or other person responsible for the treatment is of the opinion that the treatment should be extended beyond the period specified in the order, that the offender should receive different treatment, that the offender is not susceptible to treatment or that the offender does not require further treatment, he must make a report to the responsible officer. He can also report that he is unwilling to continue to treat (or direct the treatment) of the offender for any reason. The responsible officer must then apply to the court to have the requirement amended or cancelled.

700.     Paragraph 16 provides for the responsible officer to apply to the court to change a review without a hearing to a review with a hearing, and vice versa, in the case where a suspended sentence order contains a drug rehabilitation requirement.

701.     The offender or the responsible officer can apply to the court under paragraph 17 to extend the 12 months limit on unpaid work if it is in the interests of justice to do so. This might occur if the offender fell ill during the 12 months and was unable to finish all of his hours of unpaid work in time.

702.     Paragraphs 18 to 21 contain supplementary provisions. No application to cancel or amend the requirements a suspended sentence order, or to extend an unpaid work requirement can be made if an appeal against the order is pending. Where a court is amending an order, and the application is not by the offender, the court must summon the offender to appear before the court and may issue a warrant if he does not appear. This does not apply if the court is cancelling a requirement. In amending any requirement the court must keep to the restrictions on the requirements that apply if the court was then making the order. Paragraph 21 sets out procedural arrangements for sending copies of the order to relevant parties.

Schedule 11 - Persons to whom copies of requirements to be provided in particular cases

703.     This Schedule sets out who is to receive copies of each different requirement.

Schedule 15: Release of prisoners serving sentences of imprisonment for public protection

704.     This Schedule amends the provisions of the Crime (Sentences) Act 1997 relating to the release of prisoners serving life sentences so that they also apply to prisoners serving the new sentence of imprisonment or detention for public protection. Paragraph 2 inserts a new section 31A, which provides that after 10 years has elapsed following the release of an offender serving a sentence of imprisonment for public protection (see clause 207), the offender may apply to the Parole Board for his licence to be terminated. If the Parole Board is satisfied that no further risk is posed then it must recommend to the Secretary of State that the licence be terminated. If the Parole Board concludes that the offender continues to pose a risk then it must reject the application and the offender may not submit another application until at least 12 months has elapsed.

Schedule 16: The Parole Board: supplementary provisions

705.     The Schedule re-enacts Schedule 5 to the Criminal Justice Act 1991, which contains supplementary provisions about the Parole Board. The members of the Board must include representatives from certain professional fields. The Schedule also contains provisions about the payment of members, the funding of the Board and the keeping of proper records and accounts amongst other things.

Schedule 17: Determination of minimum term in relation to mandatory life sentences

706.     This Schedule sets out the principles which a sentencing court must have regard to when assessing the seriousness of all cases of murder in order to determine the appropriate minimum term to be imposed.

707.     Paragraph 1 is definitional and is largely self-explanatory. Paragraphs 2 and 3 explain what is meant racial or religious aggravation or aggravation by sexual orientation.

708.     Paragraphs 4, 5 and 6 set out the starting points that a court should adopt when determining a minimum term. The starting point may be adjusted in accordance with the presence of aggravating or mitigating factors in order to arrive at the finally determined minimum term.

Paragraph 4

709.     This paragraph deals with the small numbers of exceptionally serious cases in which the court should normally start by considering a whole life term, and provides a number of examples of cases that should normally require consideration of a whole life order. The list is not intended to be exhaustive, but indicates that murders that fall within the given categories will normally require a whole life minimum term. However, in an individual case it could be appropriate for a court to commence the determination of the appropriate minimum term with the whole life starting point but, upon further consideration of the relevant circumstances of the case, ultimately decide that a whole life term is not required. In keeping with sentencing practice generally, it is entirely a matter for the sentencing court to determine the facts upon which it is to sentence.

Paragraph 5

710.     Paragraph 5 deals with the murders which are not as serious as those that fall within paragraph 4 but are nevertheless particularly grave and require a starting point for determining the minimum term of 30 years. Like paragraph 4 this paragraph provides a non-exhaustive list of examples of cases that should normally require consideration of a 30 year starting point. This starting point may be adjusted up, or down, in accordance with the presence of aggravating or mitigating factors. A murder falling within the paragraph 5(2), may nevertheless be one that the court decides is exceptionally serious and more appropriately dealt with under paragraph 4(1) rather than 5(1).

711.     Paragraph 5(2)(h) allows a court to adopt a 30 year starting point for an offender who is 18, 19 or 20 years old and, under current provision, subject to a sentence of mandatory custody for life.

Paragraph 6

712.     The numbers of murders falling within paragraphs 4 and 5 will form a relatively small but significant proportion of all the murders that come before the courts. Most murders, and all those committed by those under 18 years of age, will therefore attract a starting point of 15 years under paragraph 6.

Paragraphs 7 to 11

713.     Once a starting point has been chosen, the court will then go on to consider factors that either increase or reduce the seriousness of the murder and make the necessary adjustments to arrive at the final minimum term. There is no restriction on the degree of adjustment that a court can make in consideration of aggravating or mitigating factors, as paragraph 8 explains. Although, therefore, there may be a few very exceptional cases in which starting points will be increased or decreased very substantially, it is expected that the vast majority of cases will tend to attract minimum terms that reflect the categorisation of cases set out in paragraphs 4, 5 and 6.

714.     Paragraph 7 makes it clear that aggravating or mitigating factors cannot be double counted. If a murder, for example, fell within paragraph 5(2) because it was the murder of a police officer, the minimum term could not be increased beyond the starting point of 30 years on the basis that the case was aggravated by facts falling within paragraph 9(f).

715.     The list of factors that are to be regarded as aggravating set out at paragraph 9 is non-exhaustive and is provided by way of example. These examples are additional to those set out at paragraphs 4(2) and 5(2) so that any factor that does not determine the relevant starting point can be taken account under paragraph 7. Planning and premeditation requires inclusion at 9(a) because a court will want to take into account premeditation and planning of any degree and reliance on the reference at paragraph 4(2)(a)(i) would only include facts that amounted to a substantial degree of premeditation or planning. Other matters are included in paragraph 9, for example paragraphs (c) and (f), because they embrace but have a greater scope than facts that would fall within paragraphs 4(2) and 5(2). Paragraph 9 (g) covers circumstances in which the court is satisfied that, in those rare cases of convictions for murder in the absence of a body, the offender is adding to the grief of a victim's family by deliberately preventing the recovery of the body.

716.     Paragraph 10 sets out a number of factors that may be taken account of by the sentencing court as mitigating factors. Once again this list is not exhaustive and provides examples only. The list covers most of the mitigating factors that are likely to arise in cases of murder and is largely self-explanatory. As regards paragraph 10(a), it may not be commonly appreciated that the offence of murder does not require an intention to kill. In the case of offenders of 17 years of age or less paragraph 10(g) may have a very significant effect on the final determination of the minimum term, especially in cases involving pre or early teenagers.

717.     Paragraph 11 makes it clear that nothing in these principles affects the general provisions in the Bill on the effect of previous convictions, offending while on bail and pleas of guilty.

Schedule 18 : Mandatory Life Sentences: Transitional Cases

718.     This Schedule deals with transitional matters. In particular it sets out arrangements to deal with:

    a)     convicted murderers serving minimum terms determined by the Secretary of State;

    b)     those already sentenced for murder but awaiting the determination of a minimum term;

    c)     minimum terms determined on or after commencement of clause 254 in respect of offences committed before that date.

Paragraph 1

719.     Paragraph 1 contains various definitions. These are self-explanatory save that it should be noted that the definition of "mandatory life sentence" excludes juveniles sentenced to mandatory detention during Her Majesty's Pleasure. This is because minimum terms for juveniles convicted of murder that were fixed by the Secretary of State are already subject to a review by the Lord Chief Justice established following the ruling of the European Court of Human Rights in the case of V v UK (Judgement of ECHR of 16th December 1999).

Existing prisoners notified by Secretary of State: Paragraphs 2, 3 and 4

720.     These paragraphs deal with prisoners who are already serving a life sentence subject to a minimum term, or whole life term, which has been fixed by the Secretary of State. In accordance with the ruling in the case of Anderson, and in seeking to afford the prisoners their rights under Article 6 of the Convention, this provision offers these prisoners an opportunity to apply to have their minimum term re-set by the High Court. Having reviewed a case, the High Court must reconsider the existing minimum term or whole life term. In so doing the court can order a period that is equal to that which was set by the Secretary of State or it may reduce the minimum term. It cannot however, increase the minimum term fixed by the Secretary of State.

721.     Some prisoners serving life sentences will remain in prison although the minimum term fixed by the Secretary of State has expired. This group is excluded from the right to apply to the High Court, but paragraph 3(3) enables them to have their cases considered by the Parole Board.

722.     Not all prisoners will necessarily wish to apply for a new minimum term. In this case the minimum term fixed by the Secretary of State in their case will remain effective.

723.     Paragraph 4 sets out in general terms the matters the court should have regard to when determining the appropriate minimum term in any individual case. In addition to the consideration of seriousness and time spent on remand required in every case under clause 1, in these transitional cases the existing notified minimum term or whole life term will also be relevant. Paragraph 4(2) requires the reviewing court, when considering the seriousness of the offence, to have regard to both the principles set out in Schedule 17 and any judicial recommendations, made shortly after the original conviction, as to the appropriate minimum term to be served by the prisoner.

Existing prisoners not notified by Secretary of State: Paragraphs 5 to 8

724.     Since the judgement in Anderson ([2002] UKHL 46) the Home Secretary has not determined any minimum terms. Accordingly, there are a number of cases in which the prisoner has been found guilty of murder and sentenced to the mandatory life sentence but still awaits the determination of a minimum term. Paragraph 6 creates a duty on the part of the Home Secretary to refer these cases to the High Court for the determination of a minimum term under the provision at clause 254.

725.     In keeping with the provision for future cases, the reviewing court must take into account the new statutory principles and any other relevant guidance when considering the seriousness of the case for the purpose of determining the minimum term. Any recommendations made by either the Lord Chief Justice or the trial judge need to be taken into account by the High Court when determining the minimum term.

726.     To ensure compatibility with Article 7 of the Convention, paragraph 8(a) prevents the High Court from determining the minimum term at a level greater than that which would have been imposed under the practice of the Secretary of State before the Anderson judgement. Paragraph 8(b) also makes it clear that no whole life term can be imposed unless such a term would, in the court's opinion, have been imposed by the Secretary of State.

 
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Prepared: 23 May 2003